Well-Founded Fear – Page 3 – immigrationcourtside.com

🤮 SCOFFLAW WATCH: IN “A-B-III” A.G. GARLAND ORDERED ALL EOIR JUDGES TO APPLY THE BIA’S PRECEDENT MATTER OF A-R-C-G- (PSG/DOMESTIC VIOLENCE) — HIS BIA DIDN’T GET THE WORD, SAYS 3RD CIR — Avila v. Att’y Gen.

Kangaroos — Mob chatter:
“Hey, anyone here know what an ARCG is?”
“No clue.”
“Some kind of boat?”
“Maybe we should ask Noah.”
“Don’t bother. The only rule we follow around here is ‘When in doubt, throw ‘em out!’”
“Isn’t that what the UN Handbook says, that ‘giving the benefit of the doubt’ means to ‘doubt that any benefit will ever be given?’”
“Yup, sounds right to me!”
“I don’t understand it. We’re overtly hostile to asylum seekers and their lawyers, we’ve tilted the playing field against them, yet they still come! Why?”
“Detain, discourage, deny, deport, deter, that’s our mission!”
“Where due process, fundamental fairness, and best practices go to die!”
“Precedents? We only follow the ones unfavorable to respondents!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

From: Ted Murphy
Sent: Thursday, September 14, 2023 10:09 AM
To: AILA Philadelphia List
Cc: Kaley Miller-Schaeffer
Subject: 3rd Circuit Precedent – PSG Honduras A-R-C-G-
Importance: High

Friends,

Please see the attached precedent decision from the 3^rd Circuit today. While the first 16 pages of the 21 page decision focus on CIMT issues, the final 4 pages are worth reading on PSG similar to A-R-C-G- that the BIA ignored.

Here, on the other hand, the BIA did not adhere to

Matter of A-R-C-G-’s requirement to examine Avila’s PSG

within the context of the specific country conditions in

Honduras. The BIA rejected Avila’s PSG for lack of

particularity without considering evidence in the record about

“widespread and systemic violence” against Honduran women,

“inconsistent legislation implementation, gender

discrimination within the justice system, and lack of access to

services.”109 Evidence in the record, including that “[l]ess than

one in five cases of femicide are investigated,… and the

average rate of impunity for sexual violence and femicide is

approximately 95%,” may have been relevant in examining

whether Avila’s proposed PSG was cognizable.110 Just as the

cultural attitudes toward gender were relevant in Matter of A-

R-C-G-, evidence in the record as to the “machismo culture” in

Honduras may be relevant to assessing whether Avila has a

cognizable PSG.111

Moreover, in Matter of A-R-C-G-, DHS conceded that

the proposed group “married women in Guatemala who are

unable to leave their relationship” was sufficient for a PSG

asylum claim.112 Given the similarity between that social group

and “Honduran women in a domestic relationship where the

male believes that women are to live under male domination,”

we must remand for the BIA to provide clarification as to its

application of Matter of A-R-C-G-, and to determine whether

Avila’s proposed PSG is cognizable in light of the specific

country conditions

.

We must also remand for the BIA to consider whether

Avila demonstrated a well-founded fear of persecution on

account of her PSG. The BIA determined that Avila’s PSG did

not “exist independently” of the harm alleged, as required

under Matter of M-E-V-G-113 and Matter of W-G-R-.114 Matter

of M-E-V-G- cites to this Court’s prior precedent in Lukwago

v. Ashcroft,115 which states that a PSG “must exist

independently of the persecution suffered by the applicant for

asylum.”116 However, Lukwago makes clear that in

determining whether a PSG exists independently of the

persecution suffered, the BIA must consider the PSG in the

context both of “past persecution” and a “well-founded fear of

persecution.”117 Here, the BIA did not consider whether Avila

had demonstrated that she had a well-founded fear of

persecution based on her past experiences of abuse and sexual

violence. Accordingly, we will remand for the BIA to consider,

in addition to whether Avila has suffered past persecution on

account of her PSG, whether she has demonstrated a well-

founded fear of future persecution.

In conclusion, on remand, the BIA should (1) clarify,

given the Government’s concession in Matter of A-R-C-G- that

the proposed group was sufficient for a PSG asylum claim, its

application of Matter of A-R-C-G- to the present case, and

consider Avila’s PSG in the context of evidence presented

about the country conditions in Honduras and (2) provide

guidance in applying both Matter of A-R-C-G- and Matter of

M-E-V-G- with respect to past persecution and a well-founded

fear of future persecution on account of membership in a PSG

Case was argued by Attorney Kaley Miller-Schaeffer.

Best regards,

Ted

Theodore J. Murphy, Esquire

Murphy Law Firm, PC

https://www2.ca3.uscourts.gov/opinarch/221374p.pdf

*****************************************

Once again, the BIA fails to follow its own precedent favorable to the respondent! Yet, in a Dem Administration they get away with mocking the rule of law in life or death cases, in a “court system” that the Dems “own.” Why?

WHO applies precedents and rules can be as important as the precedents and rules themselves! Failure to properly and uniformly apply legal rules that favor asylum seekers has become a chronic problem at EOIR. It’s one that Garland has yet to effectively and comprehensively address!

Many congrats to Kaley Miller-Schaefer and Murphy Law!

Kaley MIller-Schaefer ESQ — Kaley Miller-Schaefer ESQ
Partner
Murphy Law
PHOTO: Linkedin

🇺🇸Due Process Forever!

PWS

09-15-23

🍂FALL FOLLIES: BIA FUMBLES BASIC STANDARDS FOR FUTURE FEAR AND INTERNAL RELOCATION, SAYS 6TH CIRCUIT — Lin v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0205p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-future-fear-internal-relocation-lin-v-garland

“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”

[Hats off to Henry Zhang!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

*******************

PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”

HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”

This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?

🇺🇸 Due Process Forever!

PWS

09-13-23

🏴‍☠️🤯☠️ INVITE ‘EM TO DEFECT, THEN ARBITRARILY REJECT — Russian Allies Find Broken U.S. Asylum System Akin To Russian Roulette! — “I don’t understand how we are denying Russians at all,” says Jennifer Scarborough, Refugees’ Lawyer!

Jennifer Scarborough, EsquireLaw Firm of Jennifer Scarborough PLLC Harlingen, TX PHOTO: Firm — Jennifer Scarborough, Esquire
Law Firm of Jennifer Scarborough PLLC
Harlingen, TX
PHOTO: Firm

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=df3af6fe-6f28-47f0-a65a-95a9e0272c10

Hamed Aleaziz & Tracy Wilkinson report for the LA Times:

WASHINGTON — Numerous Russians attempting to escape conscription onto the Ukrainian battlefield have made perilous journeys to the United States, trusting in the Biden administration’s declaration that the U.S. would “welcome” those fleeing the war and their forced participation in it.

Instead of winning asylum, however, some of these men have been detained and, in at least one case, deported back to Russia, where they could be thrown into the fight against U.S.-armed Ukraine — into “the meat grinder,” as the U.S. secretary of State recently put it.

The U.S. has deported nearly 190 Russians since the beginning of October 2022, almost three times as many as were removed during the entire prior year.

Some Russian conscripts have refused to board deportation flights, forcing U.S. immigration officers to return them to immigration detention and legal limbo.

Three Russians the U.S. detained and sought to deport told The Times that certain abuse awaited them at home, where draft dodgers are subject to imprisonment or swift dispatch to front lines. The three Russians said they felt bewildered — betrayed, even — bythe U.S. asylum system. The Times is withholding their identities because they fear retribution if they are returned to Russia.

“Death awaits me there if I go back,” said one Russian man in his 20s. He said he was slated to be deported but fainted when immigration officials loaded him onto the plane, which forced them to return him to detention.

Although Ukrainian President Volodymyr Zelensky urged Russians who opposed the war to stay at home and fight to topple Russian President Vladimir Putin, the Biden administration has explicitly encouraged Russians who do not want to fight in Ukraine to seek asylum in the United States.

“There are people out there in Russia who do not want to fight Putin’s war or die for it,” White House Press Secretary Karine Jean-Pierre said in September. “We believe that, regardless of nationality, they may apply for asylum in the United States and have their claim adjudicated on a case-by-case basis.

“We welcome any folks who are seeking asylum, and they should do that,” she said.

But Russians who have taken the U.S. up on that offer have quickly discovered that seeking asylum is not the same as winning it. The U.S. government’s willingness to help people who flee Russia — even if doing so undermines Russia’s war effort — is limited.

In some cases, the government has argued that being called up to serve in the Russian military is not alone sufficient grounds for asylum. Jennifer Scarborough, the lawyer for the three Russians The Times interviewed, has countered that they qualify for asylum because they did not want to be involved with the war for political reasons and would face unreasonable repercussions for refusing to serve.

“They could be deported back to a regime that is committing gross human rights violations,” she said. “I don’t understand how we are denying Russians at all.”

The number of Russians crossing the southern U.S. border surged in November and December, shortly after Putin, facing massive casualties among his troops, ordered up a fresh army mobilization and drafted up to 300,000 reservists.

Russians crossed the southern border more than 5,000 times in November and nearly 8,000 times in December, a major increase from earlier months.

More than 8 million Ukrainians have fled their homeland since Putin launched his invasion of the former Soviet Republic on Feb. 24, 2022. Their escapes have involved trains and commercial flights and massive assistance, and they have largely been welcomed in other countries.

By contrast, many of those fleeing Russia for the U.S. have used the same difficult and at times treacherous route that disfavored refugees from all over the world use. A flight from Dubai or Istanbul gets them to South America, where they continue on flights, buses and by foot northward, sometimes trekking through jungle, to reach Mexico and the U.S. border.

One man who spoke to The Times was picked up by immigration agents in December near Tecate. The man made the weeks-long journey to the U.S. with his younger brother.

The man fled Russia when his call-up notice arrived.

“Even in childhood, I understood that, for me, America was a symbol of freedom,” he said in a telephone interview from a detention center in Pennsylvania. “And yes, there was a dream to move here one day. Because during your entire life in Russia, it is difficult; you’re discriminated against at every turn.”

“I went through war,” the man said. “I know what this entails. I saw the war. And now they are trying to force me to bring this to Ukraine.”

. . . .

*****************

Read the complete report at the link.

Jenn Scarborough asks the right question. In a functioning protection system, one would expect most cases like this to be granted in short order. However, the BIA generally has restrictive precedents on draft evaders and deserters stemming largely from a desire to deny protection to applicants fleeing civil wars in Central America decades ago. See, e.g., Matter of A-G-, 19 I & N Dec. 502 (BIA 1987).

As “Courtsiders” know, the endemic problem is lack of expert, progressive, dynamic, courageous intellectual leadership in a system now solely controlled and operated by a Dem Administration that often acts more like an “old school GOP” one on immigration and human rights! Administration of both parties live in perpetual fear that making good on promises of fair treatment and legal protection would actually motivate refugees to seek it!

That’s a particular problem at EOIR which should be the legal intellectual leader here! We need practical, scholarly, generous, common sense precedents focusing on what should be easily grantable protection claims!

Instead, we have a leaderless, bureaucratic, non-expert mess, still retaining too many elements of the anti-immigrant, anti-asylum, any reason to deny, go along to get along, court as a “deterrent” system constructed and promoted by the Trump Administration. That has continued to churn out both egregious inconsistencies and backlog-building inefficiencies in critical “life or death” cases!

🇺🇸 Due Process Forever!

PWS

08-20-23

☠️👎🏼 ANOTHER SUPER-SHODDY PERFORMANCE BY BIA ON CENTRAL AMERICAN ASYLUM OUTED BY 9TH CIR. — Reyes-Corado v. Garland

Four Horsemen — BIA Asylum Panel In Action. It’s hard to ignore the BIA’s violent, deadly, abuse of asylum seekers, particularly those of color. But, somehow, Merrick Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and other DOJ officials manage to look the other way, as do Congressional Dems! Too busy fecklessly complaining about Justice Clarence Thomas to look at their own house?
Albrecht Dürer, Public domain, via Wikimedia Commons

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/11/18-70225.pdf

SUMMARY** Immigration

The panel granted a petition for review of the Board of Immigration Appeals’ denial of Francisco Reyes-Corado’s motion to reopen removal proceedings based on changed circumstances, and remanded.

The Board denied reopening based, in part, on Reyes- Corado’s failure to include a new application for relief, as required by 8 C.F.R. § 1003.2(c)(1). The government acknowledged that under Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020), the Board erred to the extent it relied on Reyes- Corado’s failure to submit a new asylum application for relief. Here, however, unlike in Aliyev, Reyes-Corado did not include his original asylum application with his motion to reopen. Consistent with the plain text of § 1003.2(c)(1) and various persuasive authorities, the panel held that a motion to reopen that adds new circumstances to a previously considered application need not be accompanied by an application for relief.

The Board also denied reopening after concluding that Reyes-Corado did not establish materially changed country conditions to warrant an exception to the time limitation on his motion to reopen. Reyes-Corado initially sought asylum relief based on threats he received from his uncle’s family members to discourage him from avenging his father’s murder by his uncle’s family. The Board previously concluded that personal retribution, rather than a protected

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

REYES-CORADO V. GARLAND 3

ground, was the central motivation for the threats of harm. In his motion to reopen, Reyes-Corado presented evidence of persistent and intensifying threats.

As an initial matter, the panel explained that the changed circumstances Reyes-Corado presented were entirely outside of his control, and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Reyes-Corado’s claims for relief because they rebutted the agency’s previous determination that Reyes-Corado had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group. The panel explained that the Board’s previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Reyes-Corado’s family against his uncle’s family for at least fourteen years after Reyes-Corado’s father’s murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Reyes-Corado’s evidence was not qualitatively different than the evidence at his original hearing.

The panel also declined to uphold the Board’s determination that Reyes-Corado failed to establish prima facie eligibility for relief because Reyes-Corado’s new evidence likely undermined the Board’s prior nexus finding, and the Board applied the improperly high “one central reason” nexus standard to Reyes-Corado’s withholding of removal claim, rather than the less demanding “a reason” standard.

4 REYES-CORADO V. GARLAND

The panel remanded for the Board to reconsider whether Reyes-Corado established prima facie eligibility for relief and to otherwise reevaluate the motion to reopen in light of the principles set forth in the opinion.

COUNSEL

David A. Schlesinger

(argued), Kai Medeiros, and Paulina

Reyes, Jacobs & Schlesinger LLP, San Diego, California, for Petitioner.

Enitan O. Otunla (argued), Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C.; for Respondent.

OPINION

KOH, Circuit Judge:

********************************

Congrats to David A. Schlesinger & colleagues!

I’ve often discussed EOIR’s all-too-frequent use of bogus nexus determinations – basically turning normal legal rules on causation on their head – to deny protection to bona fide refugees, particularly those from Latin America and Haiti.

There is a growing body of evidence that EOIR is systematically unfair to Central American asylum applicants. But, Garland, his lieutenants, and Congressional Dems have basically looked the other way as this stunning, widespread denial of due process and equal protection under our Constitution continues to unfold in plain view on their watch! Why? Where’s the dynamic, values-based, expert, ethical leadership we should expect from a Dem Administration?

This particular example of substandard “judging” literally reeks of pre-judgement and “endemic any reason to denialism!”

Dems wring their collective hands about Justice Clarence Thomas, who is essentially unaccountable and untouchable! But, they have done little or nothing to address serious competence, bias, and ethical issues festering in a major “life or death” Federal Court System they totally control!

Lots of “talk,” not much “walk” from Dems!

🇺🇸 Due Process Forever!

PWS

08-15-23

🇺🇸🗽⚖️👍🏼😎 CONGRATS TO GW LAW IMMIGRATION CLINIC ON “WIRE TO WIRE” SUCCESS!📣

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera — They have dedicated their professional careers to teaching skills and values that change lives and advance a vision of a better future America!

Professor Alberto Benítez reports to Courtside:

Victory is the only option!

A shout-out to our student-attorneys Julia Yang, Spoorthi Datla, Cornelia Waugh, and Kelly Zhang. Yesterday our client S-L, from China, Kelly, and Paulina Vera attended an interview at USCIS. The client is a survivor of domestic violence and we had filed several applications on her behalf, including one for naturalization. Today all the applications were granted. S-L’s oath ceremony will be scheduled.

**************************************************

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

(202) 994-7463

(202) 994-4946 fax

abenitez@law.gwu.edu

THE WORLD IS YOURS…

**************************************************

Many, many congrats to all involved!

Given the endemic delays at every level of the dysfunctional USG immigration bureaucracy, seeing a case through from the initial application to eventual naturalization is no mean feat!😎 THIS, NOT the total disgraceful BS emanating from Trump, DeSantis, Abbott, and the rest of the GOP xenophobes, is what the REAL “American Dream” is all about and what REALLY “Makes America Great” — NOT totally disingenuous slogans and “throwaway lines” from those afraid to embrace and celebrate the REAL America!🇺🇸

The future of American immigration advocacy looks promising, notwithstanding the incredibly dark visions being falsely promoted by GOP restrictionists and the disturbingly feeble response from the Biden Administration and Dems in Congress. The talent in the “New Generation” of the NDPA continues to grow thanks to the inspiration and tutelage of Professors Benitez and Vera and many others like them who have dedicated their lives to making things better for everyone!

As a result, there is a rapidly expanding talent gap between the NDPA and the sluggish, unresponsive, “go along to get along” USG immigration bureaucracy — right up to the White House where so-called “policy makers” fear standing up for the rule of law and American values! Getting the talent from the “outside” to the “inside” where they can solve problems and advance progressive, practical American values is the challenge that will determine the future of our democracy!

🇺🇸 Due Process Forever!

PWS

07-31-23

🏴‍☠️ ADMINISTRATIONS CHANGE, BUT SCOFFLAW MISTREATMENT OF ASYLUM SEEKERS DOESN’T — US District Judge Jon S. Tigar Blows Away 💨 Biden Administration’s Bogus Asylum Rules — Again! — Round Table 🛡⚔️ Weighs In On Winning Side — Again! — Order Delayed Pending Filing of Appeal, So The Carnage Continues for Now!☠️

Border Death — Dem A.G. Merrick Garland’s indifference to asylum laws, racial justice, due process, and the reality of seeking asylum at the border has become astoundingly grotesque! This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
n order to comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

EBSC III MSJ order

Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:

Hi all: As you know, our group filed an amicus brief in East Bay Sanctuary v. Garland, challenging the new rules at the border that would make most of those unable to get an online appointment through an app ineligible to apply for asylum.

District Court Judge Jon Tigar just issued the attached order granting summary judgment to plaintiffs and denying defendants’ motion for summary judgment.

From Judge Tigar’s order:

“Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with section 1158…Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158…

The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”

The order is stayed for 14 days to allow the government to appeal.

Our group has once again helped make a difference in providing fairness and due process. Congrats to all.

**********************

Congrats to the plaintiffs and to my Round Table colleagues!

This was basically a blowout for the plaintiffs on all issues! The USG argument essentially was that complying with the law would be too difficult and/or politically unpopular. Therefore, they have chosen to violate the law and to use rather transparent pretexts (actually misrepresentations about the bogus “presumption”) to evade it.

Really, folks, how do we have a Dem AG who 1) approves such complete legal nonsense; 2) advances essentially frivolous and disingenuous arguments in an attempt to defend the indefensible; and 3) can’t make the legal system for asylum work in a fair and legal manner at EOIR or DHS?

How immoral and intellectually dishonest are Garland’s arguments. Here’s one of my favorite passages from Judge Tigar’s opinion:

While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors.

See, e.g., PC 32446–68 (2022 State Department report noting credible reports of gender-based violence against migrants; reports of migrants being tortured by migration authorities; “numerous instances” of armed groups targeting migrants for kidnapping, extortion, and homicide; and that asylum seekers and migrants were vulnerable to forced labor); PC 22839–42 (NGO report documenting violent crimes against 13,480 migrants in Mexico, by both state and non-state actors, between January 2021 and December 2022); PC 76248–87 (table of crimes summarized in preceding report); PC 21752–58 (2022 NGO report discussing gender-based violence in northern Mexico border cities, including against LGBTQI+ and Black migrants); PC 21610–11 (2022 NGO report concerning gender-based violence against Venezuelan women and LGBTIQ+ migrants in southern Mexico).16

16 In addition to these examples, the record is replete with additional documentation of the extraordinary risk of violence many migrants face in Mexico. See, e.g., PC 22129–30 (2023 news report documenting instances of kidnapping of asylum seekers in northern Mexico); PC 23247–50 (2022 news report quoting Chihuahua state police chief stating that “organized criminal gangs are financing their operations through migrant trafficking”); PC 23082 (2023 NGO report discussing treatment of migrants and asylum seekers); PC 20937–43 (2021 NGO report documenting kidnapping and extortion of Venezuelan migrants in Mexico); PC 29740–29744 (2021 NGO report documenting instances of rape, kidnapping, and other violence experienced by migrant women in Mexico); PC 75946–48 (2022 NGO report documenting violence against migrants in Mexico); AR 4881 (2022 NGO report noting that asylum seekers from Central America have been pursued across the border and found in southern Mexico by their persecutors).

Only somebody who avoids the border, has never represented asylum seekers there, and is impervious to facts and reality could make such outlandish arguments in favor of an outrageously deficient and illegal “policy.” Sounds like something out of the “Stephen Miller Playbook!” Why is it coming from a Dem AG?

🇺🇸Due Process Forever!

PWS

07-25-23

👎🏼 EOIR’S 3-DECADE QUEST TO DENY PROTECTION TO COPTIC CHRISTIAN ENDS BADLY IN 3RD CIR. — BIA Applies “Overly Rigorous Standard” & Fails To Recognize A Prima Facie Case For Asylum In Latest Blow To DOJ’s “Asylum Wrecking Crew!” 🏴‍☠️

https://www2.ca3.uscourts.gov/opinarch/212957np.pdf

Gebra v. A.G., 3d Cir, 07-19-23, unpublished (unfortunately)

PANEL: AMBRO, RESTREPO, FUENTES, Circuit Judges

OPINION: JUDGE RESTRO

KEY QUOTE:

i. The BIA applied an overly rigorous standard to the new evidence.

Gebra argues that the BIA applied an “overly rigorous standard” when analyzing the new evidence presented when determining whether he established a new claim. Pet’r Br. 44 (citing Tilija v. U.S. Att’y Gen., 930 F.3d 165 (3d Cir. 2019)). In Tilija, we held that unless the new evidence is inherently unbelievable, it must be taken as true. 930 F.3d at 172; see also Shardar, 503 F.3d at 313 (“Facts presented in the motion to reopen

are ‘accepted as true unless inherently unbelievable.’”) (cleaned up). If the BIA fails to accept new evidence as true, then it applies an “overly rigorous standard.” Tilija, 930 F.3d at 172. Furthermore, not accepting such evidence as true is an abuse of discretion if the petitioner would have established a prima facie case for eligibility with the rejected evidence. Id. (citing Shardar, 503 F.3d at 313).

Here, the BIA did not find that the new evidence was inherently unbelievable but nevertheless refused to accept new evidence, such as Gebra’s medical report after the 2009 attack, as “persuasive” or true because it “provide[d] little specificity or detail with respect to the alleged attack.” JA4; cf. Tilija; 930 F.3d at 172 (finding that where the BIA asked for “more details” and questioned the veracity of the evidence, it impermissibly failed to accept the evidence as true). By requesting that the medical record, on its own,

corroborate that the injuries were caused by “Islamic fanatics,” the BIA imposed an

overly rigorous standard. JA4; Tilija, 930 F.3d at 172. Similarly, the BIA’s conclusion that the report from the Egyptian Union of Human Rights Organization (“EUHRO”) pro- vides “no details” with respect to when, where, how, nor “any other details surrounding the circumstances of the alleged incident,” was an abuse of discretion. JA4; Tilija, 930

11

F.3d at 172. The BIA treated the new evidence with the same “overly vigorous standard” that it applied to the new translation of the 1993 police report that was previously dis- credited.

Having concluded that the BIA held Gebra to an excessively rigorous standard, we next determine whether Gebra established a prima facie case for asylum.

ii. Gebra’s new evidence established a prima facie case for asylum.

Gebra’s new evidence, accepted as true, establishes a prima facie case for asylum. A motion to reopen an asylum case must establish prima facie eligibility for relief. Se- voian v. Ashcroft, 290 F.3d 166, 173, 170–71 (3d Cir. 2002). This standard requires an applicant to produce objective evidence that shows a “reasonable likelihood” that they can establish eligibility for relief. Id. at 173. In this context, to “establish” means that the evidence in favor of asylum outweighs the evidence against. Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004), as amended (Dec. 3, 2004). A “reasonable likelihood” merely means showing a realistic chance that the applicant can later establish that asylum should be granted. Id. Prima facie “would lack meaning” if it required that evidence submitted at the prima facie stage conclusively establish eligibility for asylum. Id. Thus, Gebra need only provide objective evidence that shows a reasonable likelihood that he is

entitled to asylum relief. Tilija, 930 F.3d at 172. Specifically, Gebra would need to

demonstrate that he suffered past persecution, or has a well-founded fear of future perse- cution, on account of his religious beliefs. 8 U.S.C. § 1158(b)(1)(B) (enumerating reli- gion as a protected ground).

12

Here, Gebra provided objective evidence in the form of medical records and hu- man rights reports regarding his 2009 attack. For example, a December 8, 2009, medical report from Victoria Hospital in Egypt corroborates the statement in his affirmation that, due to the attack, he was “wounded and sent into the Victoria Hospital due to multiple contusions and dermal bleeding on [his] back and different parts of [his] body.” JA167, 175; see Doe v. U.S. Att’y Gen., 956 F.3d 135, 145 (3d Cir. 2020) (holding that a single

beating, “if sufficiently egregious,” may constitute persecution, such as where petitioner was beaten by a mob, causing him to bleed and suffer injuries to his head and back). Ge- bra also included medical reports of the psychological trauma he experienced and therapy sessions he attended as a result of the attacks. Doe, 956 F.3d at 145–46 (“Persecution may be emotional or psychological, as well as physical.”) (citation omitted). Further- more, the December 30, 2009, report from EUHRO stated that they independently “veri- fied” Gebra was “attacked by some [Islamic] fanatics” who thought Gebra was behind demonstrations for the rights of Coptic Christians due to his work as a cameraman for Fa- ther Zacharia Botros, a Coptic Christian priest known for critiquing Islam. JA173.

Taken together, this evidence demonstrates a reasonable likelihood that Gebra could es- tablish he was persecuted due to his religious beliefs.

In sum, the BIA abused its discretion when it did not accept Gebra’s evidence ask true and concluded that he did not establish a new claim for asylum in his third motion to reopen.

**************************

Let’s apply a tiny bit of common sense here, in contravention of the BIA’s current practices. How likely is it that a guy would pursue asylum claims for 30 years, even after being denied, deported, and actually persecuted in Egypt upon return, if there weren’t some merit in the claim? At least enough to earn him a new hearing! It’s not rocket science to know that Coptic Christians often face persecution in Egypt! Was it really wise to push this clearly flawed (one could say “scofflaw”) denial all the way to the Circuit, thus wasting even more time and further undermining the BIA’s credibility? What are they thinking at Garland’s DOJ?

Think what efficiencies, not to mention due process and fundamental fairness, a BIA of well-qualified judges who were actual experts in asylum law — focused on legal protection, not specious rejection — could bring to our broken asylum system! Why not give due process and justice a chance at DOJ?

🇺🇸 Due Process Forever!

PWS

07-21-23

🗽 BORDER: WashPost’s Maria Sacchetti’s Nuanced Report Is Well Worth A Read: “The perceived success of Biden’s approach depends on which side of the border the migrants are on.” — Right to apply for asylum is a “simple rule” that politicos of both parties lack the will & skill to follow!🤮

https://www.washingtonpost.com/immigration/2023/07/18/border-asylum-us-mexico-biden-legal/

Maria writes:

. . . .

Federal law says anyone fleeing persecution may request asylum once they reach U.S. soil, no matter how they got there. Successive administrations have attempted to restrict that simple rule, however, desperate to reduce record numbers of crossings that have overwhelmed the immigration system, leaving many to live for years in the United States without a decision in their cases.

. . . .

One border, two realities

The perceived success of Biden’s approach depends on which side of the border the migrants are on.

Brownsville, an American city of 200,000 on the other side of the Rio Grande from Matamoros, Mexico, is officially under a state of emergency. But that emergency has dissipated in recent months.

The streets are quiet, thanks to a 70 percent drop in illegal border crossers since the new asylum rule and other Biden policy changes took effect. City workers greet the relatively small number of newcomers released from holding facilities and escort them to a curtained-off parking garage and to the first bus out of town.

In Matamoros, however, migrants trying to navigate the new rules are squeezing into shelters, sharing hotel rooms, curling up in a large camp on the dry riverbank or under pop-up tents at a grimy former gas station.

On a pedestrian bridge one hot morning in late June, Mexican authorities shooed away those who did not have an appointment through the app — including some Mexicans, even though the rule change is not supposed to apply to them.

“Let’s go, please,” one officer said to migrants who gathered at the Matamoros edge of the bridge. “Now.”

Advocates for immigrants say it is unlawful for officials to block migrants from crossing borders in search of protection — and unfair to presume they can easily navigate U.S. asylum law and appointments via smartphone apps. The process of requesting asylum is supposed to be simple, they said, because lives are at stake.

But advocates are powerless to navigate around the new rules until the court case is resolved.

In the sweltering heat one recent day, Christina Asencio, a lawyer with Human Rights First, tried to explain to migrants in the Matamoros camps how the system is supposed to work.

. . . .

**************************

Read Maria’s full article, one of the more balanced treatments I have encountered, at the link.

A few thoughts:

Even this fine article misses the biggest point: Most asylum seekers want to “do things the right way.” But there has been no “right way” for years because of the unlawful and bogus use of Title 42 by both the Trump and Biden Administrations. It’s still being unlawfully restricted by the arbitrary Biden Administration regulations. Yet, remarkably, asylum seekers are willing to risk their lives waiting in Mexico for an opportunity to apply in an orderly, legal manner under a broken and biased system unfairly “rigged” against them! THAT’S the “real big takeaway” about the reduction in unauthorized border crossings. It’s one that that nobody except experts and advocates are willing to fully acknowledge! Indeed, during the Title 42 charade, an asylum seeker’s only chance of getting into the system was to cross without authorization. Otherwise, they would have been summarily returned without any chance to present their claims.
Some asylum seekers will qualify for protection, some won’t. That’s what the legal, asylum system is supposed to determine — in a fair, expert, and timely manner. That our asylum system has become dysfunctional and ludicrously backlogged lies squarely with poor performance by Congress, the Executive, and the Courts, in many cases “egged on” by right-wing nativists’ myths and distortions. Blaming the victims — asylum seekers — for massive USG failures over decades is totally disingenuous!
Statistically, it’s true that most asylum applicants from the Southern Border do not achieve asylum under our current dysfunctional system. But, the question we should be asking is why aren’t more qualifying, given the horrible conditions in “sending countries” and the generous legal standards — including a presumption of future persecution based on past persecution — that are supposed to apply, but often don’t in practice.
For years, the Executive, through its captive EOIR “courts,” has been unfairly manipulating and intentionally misapplying the law, as well as misreading and ignoring evidence, to achieve unrealistically high asylum denial rates for applicants of color, particularly those arriving at our borders from Latin American and Haiti. See, e.g., https://immigrationcourtside.com/justice-betrayed-the-intentional-mistreatment-of-central-american-asylum-applicants-by-the-executive-office-for-immigration-review/; https://immigrationcourtside.com/appellate-litigation-in-todays-broken-and-biased-immigration-court-system-four-steps-to-a-winning-counterattack-by-the-relentless-new-due-process-army/. This continues to happen, as documented by the unusually large number of rebukes by Article III Courts (even some of the most conservative) of the flawed decision-making coming out of Garland’s broken EOIR. See, e.g., https://immigrationcourtside.com/2023/07/14/🌊-tsunami-of-bad-☠️-bia-decisions-hits-garlands-doj-wrong-on-nexus-4th-2-1-wrong-on-nta-4th-2-1-wrong-on-agfel-8th-wrong-on-past-political-per/.
One of the most egregious EOIR-led anti-asylum “scams” is abuse and misuse of the “nexus” requirement for asylum to send legitimate refugees back into harm’s way. See, e.g., immediately preceding reference. “Persecution” must relate to race, religion, nationality, membership in a particular social group, or political opinion. But, the asylum statute does NOT require that that be the sole or even the primary motivation for the persecution. It just has to be “at least one central reason.” And, usually, persecution is carried out by the persecutor for a variety of reasons. It’s called “mixed motive analysis” and EOIR Judges, particularly at the precedent-setting BIA, routinely ignore or mis-apply it to deny grantable claims.
Harm resulting from things like “work, poverty, natural disaster, and bad governments” does not automatically qualify an individual for asylum. But, contrary to what many suggest, neither do these circumstances preclude asylum. For example, while a “natural disaster” might not make an individual a “refugee” under law, if that individual were forced to live in a known danger zone or denied life-saving assistance at least in part because of religious, ethnic, or political identity, that WOULD qualify. Was the infamous “Kristallnacht” in Nazi Germany systemic persecution of Jews for ethic and religious reasons? Or was it “mere vandalism, random violence, and hooliganism?” I would say clearly the former. But, I can imagine today’s BIA attributing it to the latter, to deny protection to a large group of individuals. I adjudicated thousands of asylum cases as both a trial and an appellate judge during 21 years at EOIR. I found that harm where a “protected ground” was “at least one central reason” was the rule, not the exception as EOIR tries so hard to make it.
Other often “trumped up” methods EOIR uses for denying valid asylum claims include bogus “adverse credibility” findings; unreasonable “corroboration” requirements; fabricated “reasonable internal relocation” opportunities; nonsensical, ahistorical “changed circumstances” conclusions; ignoring or misconstruing expert testimony; “selective reading” or mis-reading of country background reports; coercive detention in substandard conditions; and restricting or limiting access to counsel. If you think this sounds like a national disgrace on “Garland’s watch,” you’re absolutely right!
Undoubtedly, under a properly functioning system, with true expert adjudicators and judges — those whose career experiences demonstrated sound scholarship and understanding of the life-threatening circumstances of asylum seekers and the inherent limitations of both the Asylum office and EOIR — many more asylum cases from those applying at the Southern Border and elsewhere would be granted. So, Government policies based largely on “deterrence” or on the self-fulfilling prophecy that “few will qualify” should be viewed as fatally flawed. Without a better EOIR and an asylum adjudication system run by well-qualified experts, we can’t possibly formulate rational and humane border policies or indeed workable immigration policies at all. Tragically, we’re a long way from that right now!

🇺🇸 Due Process Forever!

PWS

07-19-23

🤮 ALLEGATIONS OF RACISM IN OHIO LATEST SLAM AGAINST MERRICK GARLAND’S FAILED “COURTS!” — “(People) need to know how these courts are just a mockery and that they’re really harming people,” says one Ohio advocate! — Lack of due process, poor performance, systemic racial injustice make Garland’s “courts” a “millstone around the neck” for American Justice and Dems!☠️

“Lady Injustice” has found a home at Garland’s dysfunctional EOIR! Black Mauritanians and other asylum seekers of color find that the scales of justice are systemically weighted against them when on trial for their lives in AG Garland’s “courts!”
Public Realm

Danae King
Faith & Values & Immigration Reporter
Columbus Dispatch

https://apple.news/AgFzMWECESo-_Tr_S7-sMDg

DANAE KING | USA TODAY NETWORK:

. . . .

In 2020, asylum seekers from Sub-Saharan Africa were deemed not credible in 8.5% of interviews, over 37% more often than, on average, for all nationalities that year, according to an August 2022 U.S. Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, submitted by several advocacy organizations.

“This data further confirms concerns raised about implicit racial and other bias in credibility determinations in US asylum adjudications,” the report states.

The report notes that Black asylum seekers face different treatment in the immigration system than others, including longer than average detention times, trouble finding accurate and adequate interpreters, different treatment in court, lack of access to counsel, purposefully rushed proceedings, biased judges, wrongful denial of asylum and more.

Lynn Tramonte has seen all those scenarios happen in Ohio.

“In immigration court, it’s almost like you’re guilty until proven innocent and they would rather err on the side of deporting a refugee who was tortured than granting asylum to someone who might be lying,” said Tramonte, director of the Ohio Immigrant Alliance, a group of Ohio immigrants and citizens who work to protect the dignity and rights of all through activism.

Nemecek has also seen judges and government attorneys “team up on (immigrants) and ask all kinds of questions and find them not credible.”

From 2002 to 2022, 713 Mauritanians went before immigration judges in Cleveland, and 443 were denied asylum. Another 28 had another form of relief, such as withholding of removal, and 242 were granted asylum, according to TRAC.

The United States Department of State considers Mauritania so dangerous that it recommends U.S. citizens don’t travel there due to crime and terrorism.

Tramonte wishes judges would do more research on the nations where asylum seekers are coming from.

“They have zero knowledge of documents from other countries or even what it’s like to be tortured,” she said.

A spokesperson for the Executive Office for Immigration Review (EOIR) disputed those claims.

. . . .

***********************

Read Danae’s full article at the link!

“Courtside” and others have been raising these issues for a long time! Yet, Garland has neither spoken out nor taken action to “clean up” courts that every expert would say are “broken” and need major changes, including better-qualified judges who have true expertise in asylum and human rights!

Assistant Attorney General for Civil Rights Kristen Clarke is totally “MIA” on this serious issue and on the racially-driven travesties in DOJ’s “wholly-owned” court system, in immigration detention centers, and at the Southern Border! Associate AG Vanita Gupta, once a civil rights icon, has “vaporized” on perhaps the biggest, potentially solvable, civil rights/racial justice issue facing America! What’s happening here?

I spent years doing Mauritanian asylum cases on the EOIR Ohio Docket (and, to a lesser extent, in the “Legacy” Arlington Immigration Court). Most were clear grants of asylum! Few were appealed by ICE! Almost none were reversed by the BIA! I doubt that conditions have improved materially since then.

Unfortunately, mistreatment of Black Mauritanian asylum seekers by EOIR is nothing new. It has a long and disreputable history going back decades.

In the late 1990’s, my now Round Table colleague Judge Lory Diana Rosenberg and I frequently dissented from wrong-headed denials of Mauritanian asylum claims by our BIA colleagues. See, e.g., Matter of M-D-, 23 I&N Dec. 1180, 1185, 1189 (Schmidt, Chairman, Rosenberg, Board Member dissenting), rev’d sub nom, Diallo v. INS, 232 F.3d 279 (2d Cir. 2000). There, the Circuit, in a decision written by Chief Judge Walker, agreed with many of the points raised by Judge Rosenberg and me in our respective dissents: “[T]he BIA failed to: (1) rule explicitly on the credibility of Diallo’s testimony; (2) explain why it was reasonable in this case to expect additional corroboration; or (3) assess the sufficiency of Diallo’s explanations for the absence of corroborating evidence.”

Judge Rosenberg and I were later “rewarded” by AG John Ashcroft by being “purged” from the BIA, along with a minority of other colleagues who had the temerity to stand up for the legal and human rights of migrants! Folks at EOIR “got the message” that standing up for immigrants’ rights and due process could be “career threatening!”

That, in turn, unleashed a crescendo of sloppy, anti-migrant, dehumanizing decisions emanating from EOIR. Things got so bad so fast that subsequent Bush II AGs Gonzalez and Mukasey were finally forced, under extreme pressure from the Article IIIs, to intervene and put a stop to the most glaring abuses.

But, in fact, the EOIR system never recovered from that debacle. From then on, the BIA has been largely a “captain may I rubber stamp” (credit “Sir Jeffrey” Chase) for DHS Enforcement and each Administration’s political agenda. It’s been a continuous downward spiral, with subsequent AGs either actively encouraging abuses of asylum seekers and other migrants or being “willfully indifferent” to the ongoing legal and human rights disasters on their watches.

It’s interesting how when the “powers that be” ignore abuses, they don’t go away. They just fester and get worse. Garland’s “what me worry” stewardship over EOIR is a classic example.

As for EOIR’s claim that they are providing IJs with “robust” asylum training, in the words of my friend, Kansas City attorney (and former Arlington intern) Andrea Martinez, “I call BS!” The proof is in the results!

My friend and Round Table colleague Judge “Sir Jeffrey” Chase puts it more elegantly:

In stating that the program is “robust” (i.e. fine as is), who among EOIR’s upper-level leadership is enough of an expert in the topic to make that determination? There are actually recent IJ hires with a great deal of expertise in asylum and CAT, but to my knowledge, they are not the ones creating or presenting the trainings.

EOIR’s asylum and CAT training remains insufficient, and the evidence of this can be found in the deluge of Circuit Court reversals, or even from simply reviewing hearing transcripts. Just compare the USCIS Asylum Officer training program with EOIR’s IJ training materials. A particular problem is the failure to properly train new IJs in the case law of the specific circuit in which they sit. Immigration Judges are largely left to their own devices to learn the law properly.

As the article states, these issues concerning Ohio have been raised before! See, e.g., https://immigrationcourtside.com/2022/10/07/🏴☠%EF%B8%8F🤮-halls-of-injustice-allegations-of-racism-misogyny-islamophobia-other-bias-have-been-swirling-around-garlands-dysfunctional-eoir/ Yet, there is no response from Garland. If the DOJ has done an investigation, the results should be made public. If not, the public deserves to know why prima facia credible allegations of systemic racism in his Immigration Courts have been ignored or deemed not credible.

Another example of superior asylum training available “on the market” is that developed by Professor Michele Pistone (a true asylum expert who has taught and inspired generations of attorneys now serving in and out of government) at VIISTA Villanova. I am sure that EOIR could have arranged with Professor Pistone to create a “world class” asylum training program for both new and experienced IJs. Indeed, she would have been a logical choice for Garland to have recruited for a senior position at EOIR.

The talent to fix EOIR exists on the open market. However, EOIR can’t be fixed with the senior management team Garland has put, or in some cases left, in place.

In the meantime, the stunningly poor quality, blatant racial insensitivity, and inept judicial administration Garland tolerates at EOIR will continue to be a millstone around the neck of American Justice and the Democratic Party. To what depths Garland will drag both remains to be seen.

Millstone — Garland’s dysfunctional and systemically biased Immigration “Courts” are a millstone around the neck for American Justice and Dems!
Creative Commons license

Finally, where are progressive human and civil rights stalwarts like Sen. Corey Booker (D-NJ) on this issue? Why haven’t they demanded some accountability from Garland? And, whatever happened to our first African-American Veep Kamala Harris? Does she still exist? What’s more important than racial justice in “life or death courts” wholly controlled by her Dem Administration?

🇺🇸 Due Process Forever!

PWS

07-18-23

🏴‍☠️👎🏼🤮 JUSTICE’S UNJUST “COURTS!” — Recent Reports Highlight Horribly Failed System —Asylum Free Zones, Unqualified Prosecutor-Judges, Deadly Denials, Blatant Information Imbalance, Dehumanizing Treatment, Poor Access To Counsel, Docket Mayhem, Unrealistic Timelines, Biased Outcomes, Indifference To Human Life, Unaccountability, Among The Myriad Problems Flagged By Those Forced To Deal With Garland’s Ongoing Mockery Of Due Process! — EXTRA! — How Poor Legal Performance @ DOJ Skews The Entire Immigration Debate!

injustice — Injustice
Public Realm
Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!

Austin Kocher, Ph.D.
Research Assistant Professor
TRAC-Syracuse
PHOTO: Syracuse U.

Two items from Professor Austin Kocher on Substack:

Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported

Omaha is now the toughest court in the country for asylum seekers, MPI hosts discussion on immigration courts in crisis, interview with an immigration judge, and more.

Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported austinkocher.substack.com • 1 min read

https://www.linkedin.com/feed/update/urn:li:activity:7086002474968313856?updateEntityUrn=urn%3Ali%3Afs_feedUpdate%3A%28V2%2Curn%3Ali%3Aactivity%3A7086002474968313856%29

*****************************

New Research by AILA Reveals Anatomy of an Asylum Case + Online Event

Even the best attorneys require 50-75 hours over several months to complete an asylum case. The Biden admin’s attempts to speed up asylum cases may be ignoring this reality.

…see more

New Research by AILA Reveals Anatomy of an Asylum Case

https://www.linkedin.com/feed/update/urn:li:activity:7086001618898296832?updateEntityUrn=urn:li:fs_feedUpdate:(V2,urn:li:activity:7086001618898296832)

*********************************

And, this from Lauren Iosue, Georgetown Law L-3 on LinkedIn.

Lauren Iosue

View Lauren Iosue’s profile

• 1st

J.D. Candidate at Georgetown University Law Center

3d •

Through my internship at the Florence Immigrant and Refugee Rights Project, I observed master calendar hearings in the detained docket in the Florence Immigration Court. I was back in Florence, Arizona, because the court itself is located within the barbed wire of the detention center. Observing the Florence Immigration Court emphasized how dehumanizing removal proceedings can be for detained immigrants. Master calendar hearings are often immigrants’ first interaction with the Court. To start, a guard brought a group of men in jumpsuits to the courtroom and lined them up. The judge read them their rights and then called them individually to discuss their case. Twice I witnessed the wrong person being brought into court where they sat through proceedings until the guards realized and switched them out for the correct person.

The vast majority of Respondents in removal proceedings are unrepresented. There is a blatant information imbalance in immigration court when the immigrant is unrepresented. Oftentimes, pro se detained immigrants do not have access to the resources represented or released Respondents have during their proceedings. Respondents may not know their legal options unless organizations like the Florence Project can speak to them before their hearing and provide them with pro se information packets or represent them. During the hearing, the men did not even have a pen and paper to take notes. Meanwhile, the immigration judge and government attorney have access to technology and a wealth of experience to pull from to make legal arguments.

This is just one example of many – my colleagues and I also observed translation issues and pushback against some men who wished to continue fighting their case. Above all, I’ll leave with this very simple observation: the judge and guards called each man up by his court docket number before his name. If we are to support and uphold the dignity of all people, we must do so especially in systems that look to strip it from them. Providing immigrants with access to a lawyer, if they’d like one, can ensure that people have access to information that allows them to make informed decisions about their case. The Florence Project is one of the organizations working tirelessly to expand access to representation throughout Arizona, and I hope to continue this work after graduating from Georgetown University Law Center next year. #EJAFellowUpdate | Equal Justice America

********************

Congrats to Lauren Iosue, and thanks for becoming a member of the NDPA! 😎 The scary thing: As an L-3, Lauren appears to have more “hands on” Immigration Court experience and a far deeper appreciation of the material, sometimes fatal, flaws in the EOIR system, than Garland and his other “top brass” in the DOJ responsible for operating and overseeing this tragic mess!

Why isn’t “real life” immigration/human rights experience representing individuals in Immigration Court were an absolute requirement for appointment to AG, Deputy AG, Associate AG, Solicitor General, and Assistant AG for Civil (in charge of OIL) in any Dem Administration, at least until such time as the Immigration Courts become an Article I Court removed from the DOJ?

30-years ago, when I was at Jones Day, we were budgeting a minimum of 100 hours of professional time for a pro bono asylum case! That was before the “21st century BIA” added more unnecessary, artificial technicalities to make it more difficult for asylum seekers to win. It’s not “rocket science!” 🚀

Lucy McMillan ESQUIRE
Chief Pro Bono Counsel
Arnold & Porter
Washington, D.C.
PHOTO: A&P

All Garland would have to do is reach back into his “big law” days at Arnold & Porter (“A&P”). He should pick up his cell phone and call Lucy McMillan, the award-winning Chief Pro Bono Counsel @ A&P. Ask Lucy what needs to change to get EOIR functioning as a due-process-focused model court system! Better yet, reassign upper “management” at EOIR, and hire Lucy to clean house and restore competence, efficiency, and excellence to his currently disgracefully-dysfunctional “courts!”

As Austin’s posts and the reports he references show, Garland’s indolent, tone-deaf, mal-administration of the Immigration Courts is a national disgrace that undermines democracy and betrays core values of the Democratic Party! How does he get away with it? Thanks to Austin, AILA, Lauren, and others exposing the ongoing “EOIR charade” in a Dem Administration!

As shown by recent “Courtside” postings about the “Tsunami” 🌊 of Article III “rejections” of lousy BIA decisions, throughout America, many, many more asylum cases could be timely granted with a properly well-qualified, expert BIA setting precedents and forcing judges like those in Omaha to properly and generously apply asylum law or find other jobs! Maximum protection, NOT “maximum rejection,” is the proper and achievable (yet unrealized) objective of asylum laws!

Asylum law, according to the Supremes and even the BIA is supposed to be generously and practically applied — so much so that asylum can and ordinarily should be granted even where the chances are “significantly less” than probable. See Matter of Mogharrabi, 19 I & N Dec. 439, 446 (BIA 1987).

The problem is that the BIA and EOIR have never effectively implemented and followed the Mogharrabi standard. In recent years, particularly during the Trump debacle, they have moved further than ever away from this proper legal standard while still giving it lip service! Clearly, the IJs in Omaha and other “Asylum Free Zones” are operating outside the realm of asylum law with deadly and destructive consequences. Yet, Garland, a former Federal Judge himself, permits it! Why?

The assumption that most asylum seekers who pass credible fear should ultimately lose on the merits is false and based on intentionally overly restrictive mis-interpretations and mis-applications of asylum law! It’s a particular problem with respect to asylum seekers of color from Latin America and Haiti — a definite racial dimension that DOJ and DHS constantly “sweep under the carpet.” Because of the extraordinarily poor leadership from EOIR, DOJ, and DHS, this “fundamental falsehood of inevitable denial” infects the entire asylum debate and materially influences policies.

A dedicated long-time “hands-on” asylum expert, someone who actually met some of the “Abbott/DeSantis busses,” said that over 70% of those arriving from the border had potentially grantable asylum claims. That’s a far cry from the “nobody from the Southern border will qualify” myth that drives asylum policy by both parties and has even been, rather uncritically, “normalized” by the media.

Fixing EOIR is a prerequisite to an informed discussion of immigration and development of humane, rational, realistic immigration policies. That would be laws and policies based on reality, not myths, distortions, and sometimes downright fabrications.

Competent representation is also an essential part of fixing EOIR. There are ways to achieve it that Garland is ignoring and/or inhibiting. See, e.g., VIISTA Villanova. No excuses!

🇺🇸Due Process Forever,

PWS

07-17-23

🌊 TSUNAMI OF BAD ☠️ BIA DECISIONS HITS GARLAND’S DOJ! — WRONG On Nexus (4th, 2-1); WRONG On NTA (4th, 2-1); WRONG On Agfel (8th); WRONG On Past Political Persecution In Cameroon (5th); WRONG On Experts (1st)!

Dan Kowalski reports for LexisNexis Immigration Community:

1. NEXUS

CA4 on Nexus, Religious Persecution: Chicas-Machado v. Garland

https://www.ca4.uscourts.gov/opinions/211381.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-religious-persecution-chicas-machado-v-garland

“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”

[Hats off to Daniel Thomann! Listen to the oral argument here.]

Daniel Thomann
ESQ

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com https://www.ca4.uscourts.gov/opinions/211381.P.pdf

2. NTA

CA4 on Defective NTA: Lazo-Gavidia v. Garland

https://www.ca4.uscourts.gov/opinions/202306.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-defective-nta-lazo-gavidia-v-garland

“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”

[Hats off to Glenn Fogle! Listen to the oral argument here.]

Glenn Fogle ESQ

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

3. AgFel

CA8 on Shoplifting: Thok v. Garland

http://media.ca8.uscourts.gov/opndir/23/07/222508P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca8-on-shoplifting-thok-v-garland

“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”

[Hats off to Jaime Arango! Listen to the oral argument here.]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

4. Past Political Persecution In Cameroon

Unpub. CA5 Victory: Naah v. Garland

https://www.ca5.uscourts.gov/opinions/unpub/20/20-61059.0.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/unpub-ca5-victory-naah-v-garland

“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”

[Hats off to Danielle Beach-Oswald!]

Danielle Beach-Oswald ESQ

Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:

5. Experts

Unpublished 1st Cir. Victory [Experts]

[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!

More to follow. We continue to make a difference!

Best, Jeff

I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.

1st on Experts

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Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?

In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.

As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.

Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.

Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!

As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.

If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!

“Catch 22” — the applicant loses either way!

Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.

The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!

Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”

Congrats, Danielle, and thanks for all you do!

Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!

What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?

🇺🇸 Due Process Forever!

PWS

07-14-23

🤯🏴‍☠️ BIA BLUNDERS BUILD BACKLOG! — 4th Cir. (2-1) & 2d Cir. Continue To Call Out BIA’s Lawless, Anti-Immigrant Behavior In Dem Administration! — PLUS, BONUS COVERAGE — Commentary From Michelle Mendez & Me!😎

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221463.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-psg-political-opinion-and-cat-santos-garcia-v-garland

“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”

[Hats way off to pro bono publico counsel Jessica L. Wagner!]

Jessica Wagner
Associate
Gibson Dunn
D.C. Office
PHOTO: Gibson Dunn

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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https://www.ca2.uscourts.gov/decisions/isysquery/05b1e9ea-e5da-493a-8b94-45bc8e3d4757/3/doc/21-6043_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-iac-prejudice-hardship-continuance-paucar-v-garland

“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”

[Hats off to Prof. Lindsay Nash and Paige Austin!]

Lindsay Nash
Associate Professor of Law
Co-Director, Kathryn O. Greenberg Immigration Justice Clinic
Cardozo Law
PHOTO: Cardozo Law

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

****************

In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!

Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4^thCircuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.

Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!

Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.

Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.

Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases? Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”

In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.

So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4^th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.

What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!

Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7

Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!

Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.

Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.

Here are a couple of excerpts from the decision that stood out to me:

“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”

“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”

“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”

There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.

Again, really great work and outcome! Thanks for sharing with all of us, Dan!

For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!

In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.

Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.

Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!

Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?

This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!

Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!

Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!

🇺🇸 Due Process Forever!

PWS

07-14-24

🏴‍☠️ FOURTH FINDS BIA’S NEXUS ABUSE CONTINUES UNDER GARLAND 🤮 — Dem AG Permits His “Courts” To Engage In Specious “Any Reason To Deny” Misconduct That Artificially Suppresses Asylum Grants! ☠️ — Marvin A.G. v. Garland (published)!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-marvin-a-g-v-garland

“Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. … We thus conclude that the IJ erred by applying an incorrect standard in the nexus analysis, and that the Board abused its discretion because it “compounded the [IJ’s] error by failing to recognize it.” Perez Vasquez, 4 F.4th at 223. In addition, both the IJ and the Board failed to address substantively the petitioner’s testimony about the threat of future persecution. … The Board thus applied the incorrect legal standard for the nexus analysis and arbitrarily disregarded relevant evidence. Accordingly, we hold that the Board abused its discretion in denying the petitioner’s motion to reconsider his asylum and withholding of removal claims, and we remand for the agency to “meaningfully consider [the petitioner’s] evidence” under the correct legal standard.”

[Hats off to Eric Suarez!]

Eric Suarez ESQUIRE
Partner
Sanabria & Associates
PHOTO: Firm website

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EOIR judges and the BIA routinely butcher “mixed motive” cases like this one! This endemic problem at EOIR badly distorts asylum adjudication nationwide, produces false statistics suppressing the significant number of wrongful asylum denials (particularly targeting asylum applicants of color for unfair, unjust adjudications), and refutes the Article III’s disingenuous treatment of the BIA as an “expert tribunal” entitled to Chevron deference. In that way, it seriously undermines the integrity of our entire judicial system!

In this case, counsel specifically pointed our the BIA’s errors in a timely motion to reconsider, only to have it “blown off” with basically fabricated boilerplate BS!

The petitioner appealed the IJ’s decision to the Board. After the Board affirmed the IJ’s conclusions and dismissed the appeal, the petitioner filed a motion to reconsider. The Board denied the motion, concluding that the IJ did not clearly err in its nexus determination, and reiterating the IJ’s conclusion that family membership was “incidental or subordinate” to the other reasons the gang targeted the petitioner, namely, for monetary gain and gang recruitment.

Another of my favorite parts of this decision addresses the BIA’s pronounced tendency to invent specious “non-protected” reasons for the persecution and then dishonestly characterize that at the sole or primary motivations.

The Board’s cursory conclusion that the gang had targeted the petitioner for “monetary gain and gang recruitment” does not remedy the Board’s error. Indeed, we fail to see how family membership necessarily was subordinate to these other motivations when the sole basis the petitioner presented for his fear of future persecution was that the gang would target him due to his relationships with his siblings.

Friends, this is NOT the competent, impartial, professional, expert adjudication that due process and fundamental fairness requires! Nor is it the improvement from Trump’s institutionalized White Nationalist approach to asylum and immigration promised by Biden and Harris during their 2020 campaign! It’s basically a “bait and switch” by Dems! Additionally, it sets a horrible example for Immigration Judges (many of whom lack relevant expertise in asylum law) and Asylum Officers nationwide.

Garland’s has refused to “clean house” and employ solely competent, unbiased, impartial asylum experts as BIA Appellate Immigration Judges, selected on a merit basis from among those possessing the requisite practical asylum expertise, temperament, and widely-acknowledged qualifications for these critically important judgeships.

Garland’s failure to perform his job, in turn, is having a deleterious effect on every aspect of our asylum, protection, and immigration systems and is undermining the entire rule of law. It also promotes false narratives about asylum seekers and inhibits effective representation of this vulnerable and deserving group. It’s wrong; it’s inexcusable, and it’s a “big deal!’

I leave you with this thought from an expert who actually practices before EOIR and understands what competent asylum adjudication should be:

We really do need better judges at the BIA. [Hope that this] decision that will make a dent in their current dysfunction.

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges — Maybe HE should be in charge of selecting and training BIA Appellate Immigration Judges!

Or as my Round Table colleague Hon. “Sir Jeffrey” Chase suggests:

Maybe the Board should read my article on the proper test for nexus:

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

Great idea! But, don’t hold your breath!

SeniorCircuit Judge Barbara Milano Keenan wrote the opinion, in which Judge Thacker and Judge Heytens joined.

🇺🇸 Due Process Forever!

PWS

06-28-23

☹️ WORLD REFUGEE DAY 2023 (JUNE 20) IN AMERICA: More Asylum Seekers Denied Access; Flubbed Resettlement; Kids Face Court Alone; NGOs Left To Pick Up Slack!

Kids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
Creative Commons License

ACCESS DENIED

Hamed Aleaziz reports for the LA Times:

https://apple.news/AnR6bRRRoSxm4nMAHyNOLXQ

A new Biden administration policy has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum, according to numbers revealed in legal documents obtained by The Times. Without these new limits to asylum, border crossings could overwhelm local towns and resources, a Department of Homeland Security official warned a federal court in a filing this month.

The new asylum policy is the centerpiece of the Biden administration’s border efforts.

Under the new rules, people who cross through a third country on the way to the U.S. and fail to seek protections there are presumed ineligible for asylum. Only people who enter the U.S. without authorization are subject to this new restriction.

The number of single-adult migrants who are able to pass initial screenings at the border has dropped from 83% to 46% under the new policy, the Biden administration said in the court filing. The 83% rate refers to initial asylum screenings between 2014 and 2019; the new data cover the period from May 12, the first full day the new policy was in place, through June 13.

Since the expiration of Title 42 rules that allowed border agents to quickly turn back migrants at the border without offering them access to asylum, the administration has pointed to a drop in border crossings as proof that its policies are working.

But immigrant advocates and legal groups have blasted Biden’s new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden’s policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.

The new filing provides the first look at how the Biden administration’s asylum policy is affecting migrants who have ignored the government’s warnings not to cross the border.

“This newly released data confirms that the new asylum restrictions are as harsh as advocates warned,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility.”

. . . .

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Read Hamed’s full story at the link.

None of the statistics cited in the article actually give a full picture, since the don’t account for 1) families, 2) children, and 3) those processed at ports of entry using the highly controversial “CBP One App.” Nor do they give insights into what happens to those denied access to the asylum adjudication system.

As Aaron Reichlin-Melnick points out, increased rejections of legal access are exactly what experts, including our Round Table of Former Immigration Judges, predicted in vigorously opposing the Administration’s ill-advised regulatory changes. See, e.g., https://immigrationcourtside.com/2023/03/27/⚔️🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠️-proposed/.

In the article, DHS official Blas Nuñez-Neto babbles on about the wonders of mindless extralegal enforcement as a “deterrent.” In a classic example of disingenuous misdirection, Nuñez-Neto appears to suggest that “success” in implementing asylum laws should be measured in terms of the number of individuals denied access or discouraged from applying.

Actually, success in implementing asylum laws should be measured solely by whether 1) all asylum applicants regardless of status or where they apply are treated fairly and humanely; and 2) those eligible for asylum under a properly generous, protection-focused application of asylum laws are actually granted asylum in a timely manner complying with due process. By those measures, there is zero (O) evidence that the Biden Administration’s approach is “successful.”

Moreover, Nuñez-Neto’s comments and much of the media focus skirt the real issue here. Border apprehensions have decreased because asylum seekers in Northern Mexico appear to be “waiting to see” if the “CBP One App System” at ports of entry actually offers them a fair, viable, orderly way of applying for asylum. In other words, does the Biden Administration’s legal asylum processing system have “street credibility?”

So far, CBP One and DHS appear determined to “flunk” that test; the App continues to be plagued with technical and access glitches, and the numbers of appointments available is grossly inadequate to meet the well-known and largely predictable demand.

If the border lurches out of control in the future, it probably will be not the fault of legal asylum seekers. Rather, it will be caused by poorly-conceived and legally questionable Biden “deterrence policies” and the restrictionist politicians (in both parties, but primarily the GOP) who are “egging them on.” That is, an Administration unable to distinguish its friends from its enemies and unwilling to develop a comprehensive strategy for dealing with the inevitably of refugee flows by creatively and positively using and “leveraging” the ample (if imperfect) existing tools under our legal system.

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ADMINISTRATION’S FLUBBED RESETTLEMENT (NON) EFFORT EMPOWERS GOP WHITE NATIONALISTS, VEXES PROGRESSIVE DEMS

Nick Miroff & Joanna Slater report for WashPost:

NEW YORK — On the fourth day of his new life in New York City, Antony Reyes set out from the opulent lobby of Manhattan’s Roosevelt Hotelwith an empty wallet and the address of a juice bar on Broadway possibly offering some work.

Reyes had been staying at the crowded hotel-turned-emergency service center, hunting odd jobs during the day along with other newly arrived Venezuelans who navigated the streets of midtown using “Las Pantallas”— the Screens (a.k.a. Times Square) as a landmark.

“I just want to work,” Reyes said in Spanish. “I didn’t come here to be a burden on anyone.”

Reyes, 23, was among the tens of thousands of migrants who rushed to cross the U.S.-Mexico border ahead of May 11, when the Biden administration lifted the pandemic policy known as Title 42. The largest group were Venezuelans, who have been arriving to the United States in record numbers since 2021.

Unlike previous waves of Latin American immigrants who gravitated to communities where friends and family could receive them, the most recent Venezuelan newcomers tend to lack those networks in the United States. Many have headed straight to New York, whose shelter system guarantees a bed to anyone regardless of immigration status.

City officials say they are housing more than 48,000 migrants across an array of hotels, dormitories and makeshift shelters that now spans 169 emergency sites.

New York has spent $1.2 billion on the relief effort since last summer. The ballooning costs have left Mayor Eric Adams feuding with local leaders upstate over who should take responsibility for the migrants, and he has also called out President Biden, a fellow Democrat, for not sending more aid.

Other U.S. cities are struggling with the influx too. Denver, Philadelphia and Washington — all cities with Democratic mayors — have received migrants bused from Texas as part of a campaign by Republican Gov. Greg Abbott to denounce Biden administration border policies. In Chicago, migrants have slept in police stations while awaiting shelter beds.

Officials in those cities are scrambling to find bed space and clamoring for more federal assistance. But the ad hoc nature of the humanitarian effort raises questions about the ability of New York City and other jurisdictions to receive and resettle so many newcomers.

The flow of Venezuelans crossing the southern border has dropped since the Title 42 policy ended, even as many continue arriving in cities in northern Mexico in hopes of reaching the United States. The Biden administration is tightening border controls and urging Venezuelans and others to apply for legal U.S. entry using a mobile app, while expanding the number of slots available for asylum seekers to make an appointment at an official border crossing.

The number of people requesting appointments, however, far outstrips supply.

The influx of migrants in New York has pushed the city’s total shelter population to 95,000, up from 45,000 when Adams took office in January 2022.

“We have reached a point where the system is buckling,” Anne Williams-Isom, deputy mayor for health and human services, told reporters at a news conference in late May.

. . . .

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Read the rest of Nick’s & Joanna’s article at the link.

This Administration has been in office more than two years, with knowledge of the inevitable flow of asylum seekers, particularly from Venezuela and access to some of the best and most innovative human rights experts in the private sector.

Yet, this Administration has failed to 1) put in place an orderly nationwide resettlement system in partnership with the many NGOs and some localities “already in the business;” 2) construct “regional reception centers” to provide food, shelter, representation, and support to asylum seekers during the legal process, as recommended by many experts, and 3) restore functionality and timeliness to the legal asylum systems at USCIS and EOIR by a) cleaning out the “deadwood” (or worse) accumulated during the Trump Administration, and b) hiring experts, not afraid to properly use asylum and other laws to “protect rather than reject” and to replace the anti-asylum culture and legal regimes installed and encouraged at DHS and EOIR under Tump.

Additionally, most Venezuelans can’t be returned anyway, and the Administration’s apparent hope to “orbit” many of them to Mexico, a country far less able to absorb them than than the U.S., is ill-advised at best.

Consequently, updating TPS for Venezuelans and others, thus providing employment authorization and keeping them out of the already dysfunctional asylum system, should have been a “no brainer” for this Administration.

This is a truly miserable absence of creative, practical problems-solving by a group that ran on promises to do better. Given the shortage of affordable housing in NY and other areas, why not “replicate and update” the CCC, WPA, and other public works projects from FDR’s “New Deal?”

Give those arriving individuals with the skill sets opportunities to construct affordable housing for anyone in need, with an chance to live in the finished product as an added incentive! Let migrants be contributors and view their presence as an opportunity to be built upon rather than as a “problem” that can’t be solved.

Not rocket science! 🚀 But, evidently “above the pay grade” for Biden Administration immigration policy wonks!

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CONSTITUTION MOCKED BY ALL THREE BRANCHES AS KIDS CONTINUE TO FACE IMMIGRATION COURT ALONE!

https://documentedny.com/2023/06/20/unaccompanied-minors-immigration-court-asylum/

GIULIA MCDONNELL NIETO DEL RIO reports for Documented:

The 10-year-old boy sat in a chair that was too big for him and he asked the immigration judge in Spanish if he could speak to the court.

“Please, don’t deport me,” the boy, Dominick Rodriguez-Herrera, pleaded into the microphone. “I want to stay with my brother.”

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Then he buried his head into his mother’s stomach as they embraced, tears welling in both their eyes. “Don’t cry,” his mother told him softly, with one arm around Dominick, and the other holding her two-month-old son who whined on her shoulder.

Also Read: The Central American Minors Program Struggles to Get Back on Its Feet

The family, from Guatemala, was at the Broadway immigration court in Lower Manhattan last week for an initial hearing in Dominick’s immigration case. Dominick had crossed the U.S.-Mexico border alone in March of 2022, and was designated as an unaccompanied minor.

Dominick’s mother, Nelly Herrera, told Documented the ordeal began when they were both kidnapped in Mexico and separated. She said Dominick escaped their captors and reached the U.S. border. Malnourished and thin from weeks of little food, he managed to squeeze through a wall into California, although she’s not sure where. He was only eight years old, and had no idea where his mother was.

“He doesn’t talk about all that a lot because he says it’s something he doesn’t want to be reminded of anymore,” she said.

After authorities helped Herrera escape her captors in Mexico, she and Dominick were reunited last year. Now, without a lawyer, they are fighting for a chance for Dominick to stay with her in the U.S.

At a time when immigration courts are struggling to manage the high volume of migrants coming to New York City, another section of the system is facing a high volume of deportation cases: those of unaccompanied minors – children who entered the U.S. when they were under the age of 18, without a parent. Many of them show up to court without an attorney, and advocates are concerned that there aren’t enough resources to reach all of them.

“We are definitely seeing an uptick in the numbers,” said Sierra Kraft, executive director of a coalition called the Immigrant Children Advocates Relief Effort (ICARE).

Kraft said she observed the juvenile docket several times this year and found hundreds of children had come to court without legal representation.

“There was a little two year old that was sitting there with a sponsor, and they had no representation and really no idea what to do next. So it’s a real crisis,” Kraft said.

. . . .

At a Senate hearing on the safety of unaccompanied migrant children in Congress last week, Lorie Davidson, Vice President of Children and Family Services at Lutheran Immigration and Refugee Service, testified that most unaccompanied children do not have an attorney to represent them.

“I do not know of any other circumstances in which a three-year-old would have to represent themselves in court. It is indefensible,” Davidson said at the hearing.

. . . .

***************************

Read Giulia’s complete article at the link.

Administrations of both parties have employed and disgracefully defended this clearly unconstitutional, due-process-denying process. The “low point” was probably during the Obama Administration when an EOIR Assistant Chief Immigration Judge infamously claimed that he could “teach asylum law to toddlers” — touching off an avalanche of internet satire. See https://www.aclu.org/video/can-toddlers-really-represent-themselves-immigration-court.

But, the Executive has had plenty of help from Congress and the Article III Courts, who both have failed to end this mockery of constitutional due process as well as common sense. It’s hard to imagine a more glaring, depressing example of failure of public officials to take their oaths of office seriously!

On the other hand, NY Immigration Judge Olivia Cassin, mentioned in the full article, is the right person for the job of handling the so-called “juvenile docket” at EOIR. A true expert in immigration and human rights laws, she came to the job several decades ago with deep experience and understanding gained from representing individuals pro bono in Immigration Court.

She is a model of what should be the rule, not the exception, for those sitting on the Immigration Bench at both the trial and appellate levels. Although AG Garland has done somewhat better than his predecessors in “balancing” his appointments, EOIR still skews far too much toward those with only prosecutorial experience or lacking ANY previous immigration and human rights qualifications.

Consequently, poor, inconsistent, and uneven judicial performance remains endemic at EOIR and not sufficiently addressed by Garland in his two plus years in office. Just another reason why Garland’s failing courts are running a 2 million case backlog and are unable to provide the nationwide due process, guidance, leadership, and consistency that EOIR was supposedly created to furnish.

Brilliant, well-qualified, and committed as individuals like Judge Cassin are, they are not going to be able to solve this problem without some help and leadership from above. Sadly, this doesn’t appear got be on the horizon.

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UPHOLDING THE RULE OF LAW & HUMAN DECENCY FOR REFUGEES HAS BEEN LEFT LARGELY TO NGOs IN LIGHT OF THE USG’S SYSTEMIC FAILURE

Jenell Scarborough, Pathway to Citizenship Coordinator at **EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:**

What a way to celebrate World Refugee Day, with a community listening section where we meet community leaders who every day make extraordinary efforts to join forces and serve Immigrants and Refugees. We’re not just hearing from Eva A. Millona Chief, USCIS Office of Citizenship, Partnership and Engagement and the Chief of Foreign Affairs for Foster America.
Thanks to Cristina España for keeping us connected with local government agencies and making visible the work of grassroots organizations, where El Centro Hispano works tirelessly. Without a doubt a great night!

***************************

Way to go, Jenell. Encouraging to know that you are taking our legal obligations to refugees seriously, even if too many USG officials in all three branches aren’t! (Eva A. Millona of USCIS, mentioned in the post appears to be a rare exception among those in leadership positions within this Administration).

******************************************

🇺🇸 MAKE EVERY DAY WORLD REFUGEE DAY, & Due Process Forever!

PWS

06-21-23

🛡⚔️ THE ONGOING QUEST FOR THE “HOLY GRAIL OF JUSTICE” — Round Table Files Brief In Support Of Due Process, Rule of Law In East Bay Sanctuary v. Biden!

https://drive.google.com/file/d/12Gi2JbTNOI9C1kVWN1NuULgAuYCWziVd/view?usp=sharing

KEY EXCERPT:

INTRODUCTION

As former immigration judges and former members of the Board, we submit this amicus brief to ask the Northern District of California to strike down the Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 11, 2023). The Rule, which came into effect in the immediate aftermath of Title 42’s sunset and which applies to non-Mexican asylum-seekers at the U.S.-Mexico border, automatically forecloses a migrant’s asylum claim unless the person (i) arrives at an official port of entry having secured an immigration appointment through a complex mobile application, (ii) receives advance permission to travel to the U.S., or (iii) comes to the U.S. after applying for and being denied asylum in a transit country. Absent proof one of these narrow exceptions or a medical or other emergency, asylum-seekers will be unable to seek asylum regardless of whether they have compelling claims to relief.

Immigration judges serve an important role in the Congressionally-mandated process for reviewing the claims of asylum-seekers at or near the U.S.-Mexico border. This decades-old process, known as Expedited Removal, has its own flaws, but it does provide a credible fear review system that provides important protections for those seeking asylum. Specifically, and as explained in more detail below, the Expedited Removal statute requires that asylum-seekers, regardless of how they entered the United States, be interviewed by asylum officers to determine whether they have a credible fear of persecution and therefore can proceed to a full asylum hearing under Section 240 of the INA. The statute further mandates that immigration judges provide de novo review of asylum officers’ negative credible fear determinations, and thus make the final decision about whether an asylum-seeker at the U.S.-Mexico border has shown a credible fear of persecution and will have the opportunity to progress to a full asylum hearing.

The Rule unlawfully undermines this statutory scheme. First, the Rule creates clear bars to asylum for most migrants, disingenuously labeling these as “rebuttable presumptions.” As a result, almost all claims for asylum are pretermitted without the full asylum credible fear interviews required by the statutory Expedited Removal process. Rather, the credible fear interview will be turned into a “reasonable fear” interview to determine whether the migrant can proceed to claim withholding of

removal or protection under the Convention Against Torture (“CAT”), lesser forms of relief compared to asylum. Asylum-seekers are thus denied the opportunity to obtain full review of their asylum credible fear claims, including the de novo review by an immigration judge as required by Section 235 of the INA, 8 C.F.R. § 235.3. Instead, asylum-seekers may only seek review from an immigration judge as to the application of the narrow exceptions under the Rule or the lesser claims for relief. Accordingly, the Rule significantly and unlawfully curtails the role of immigration judges in asylum adjudication as set forth in the INA.

Moreover, the idea that the Rule heightens efficiency in the asylum adjudication process is an illusion. When an asylum-seeker is denied the ability to provide a credible fear of persecution, Expedited Removal still requires a review of potentially more complicated claims for withholding of removal and protection under the CAT. Thus, immigration judges on the one hand find their hands tied, unable to review the claims of bona fide asylum-seekers, but on the other hand are required to delve into the standards of withholding and CAT. Thus, the Rule turns a straightforward (and efficient) asylum credible fear review into a three-part analysis: the Rule exceptions, withholding, and CAT.

Finally, by creating exclusions that deny asylum to refugees who appear at the U.S.-Mexico border, the Rule violates U.S. obligations under the 1951 Refugee Convention. Longstanding canons of statutory and regulatory construction require consideration of international law; in this case, the Rule violates both the INA and international law.

. . . .

****************************

Read the complete brief skillfully prepared by our friend Ashley Vinson Crawford and her team at Akin Gump!

Our brief basically reiterates, expands, and applies points we made in our recent comments opposing the Biden Administration’s “Death to Asylum,” regulations! See https://immigrationcourtside.com/2023/03/27/⚔%EF%B8%8F🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠%EF%B8%8F-proposed/

Rather than heeding our comments and those of many other experts, the Administration proceeded with its wrong-headed changes, rammed through a farcically truncated “comment period” that showed that process was little but a sham. This is the exact kind of mockery of justice and prejudgement that one might have expected from the Trump Administration. It’s also one of the many things concerning immigration that Biden and Harris “ran against” in 2020 but lacked the will and integrity to achieve in practice.

Notably, we’re not the only group of “concerned experts” weighing in against the Biden Administration’s ill-advised rules. The union representing the USCIS Asylum Officers were among the many expert organizations and individuals filing in support of the plaintiffs in East Bay Santuary. See, e.g., Asylum Officers, Ex-Judges Back Suit On Biden Asylum Rule – Law360.

Among other choice commentary, the Asylum Officers argue that the rule “effectively eliminates asylum” at the southern border! What on earth is a Dem Administration doing betraying due process and the rule of law in favor of the most scurrilous type of nativist anti-asylum pandering — stuff right out of the “Stephen Miller playbook?” Who would have thought that we would get rid of Miller & company in 2020, yet still have to deal with his ghost in a Biden/Harris Administration that clearly and beyond any reasonable doubt has “lost its way” on immigration, human rights, racial justice, and the rule of law?

As Round Table spokesperson “Sir Jeffrey” Chase says, “We are in very good company!” Too bad that the Biden Administration has wandered off course into the morally vacant, disingenuous “never-never land” of anti-asylum, racially-driven nativism! It certainly did not have to be this way had effective, principled, expert leadership taken hold at the beginning.

🇺🇸 Due Process Forever!

PWS

06-09-23

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

Related posts:

Hamed Aleaziz & Tracy Wilkinson report for the LA Times:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Professor Alberto Benítez reports to Courtside:

Victory is the only option!

🇺🇸 Due Process Forever!

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Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:

🇺🇸Due Process Forever!

Related posts:

Gebra v. A.G., 3d Cir, 07-19-23, unpublished (unfortunately)

🇺🇸 Due Process Forever!

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Maria writes:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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Two items from Professor Austin Kocher on Substack:

And, this from Lauren Iosue, Georgetown Law L-3 on LinkedIn.

🇺🇸Due Process Forever,

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

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ACCESS DENIED

Hamed Aleaziz reports for the LA Times:

ADMINISTRATION’S FLUBBED RESETTLEMENT (NON) EFFORT EMPOWERS GOP WHITE NATIONALISTS, VEXES PROGRESSIVE DEMS

Nick Miroff & Joanna Slater report for WashPost:

CONSTITUTION MOCKED BY ALL THREE BRANCHES AS KIDS CONTINUE TO FACE IMMIGRATION COURT ALONE!

GIULIA MCDONNELL NIETO DEL RIO reports for Documented:

UPHOLDING THE RULE OF LAW & HUMAN DECENCY FOR REFUGEES HAS BEEN LEFT LARGELY TO NGOs IN LIGHT OF THE USG’S SYSTEMIC FAILURE

Jenell Scarborough, Pathway to Citizenship Coordinator at EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:

🇺🇸 MAKE EVERY DAY WORLD REFUGEE DAY, & Due Process Forever!

Related posts:

KEY EXCERPT:

🇺🇸 Due Process Forever!

Related posts:

Jenell Scarborough, Pathway to Citizenship Coordinator at **EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:**